Keiffer Bros. v. Bank of Commerce

Cook, J., delivered the opinion of the conrt. C. Holloman died intestate, and his wife was appointed administratrix of his estate. Publication for creditors was given in dne form, and after the expiration of the time for probating claims the conrt declared the estate insolvent, and gave notice in the manner provided by section 2117, Revised Code of 1906, for all creditors to file their claims by March 9,1912, at which time all claims would be taken up for examination and adjudication. The claims of appellants had been duly probated, but, in response to the notice to file their claims for examination, appellants did not file the original probated claims on March 9th, but filed copies of same, and attached thereto the certificate of the clerk of the chancery conrt that the claims had been filed, probated, and allowed strictly in accordance with the statute, and the attorney for appellants filed with the claims his affidavit that the original probated claims had been lost or misplaced. The court was requested to grant appellants thirty days in which to file proofs and evidence of the justness and correctness of their accounts. The court ordered that a further hearing upon the claims be continued until May 9th. The original probated claims were found and filed at the July term of the court. It appears in the final decree that by agreement of all parties, on May 9th, a further hearing upon these claims was continued to August 10th, at which time the final decree was entered disallowing appellant’s claims, because no good reason had not been offered why the claims had not been filed by May 9th. This ruling of the court is one of the causes for this appeal. Without deciding that the statute requires the filing of the original probated claims, we think, assuming it does, [674] that the creditor should not be penalized, to the extent of forfeiting his claim, because it has been lost or mislaid. The further hearing upon the claims by order of court was continued to May 9th, and by agreement of all parties to August 10th. In the meantime, at the July term of the court, the original probated claims were filed. We think the court had the power to continue the hearing, or to extend the time for the presentation of claims; and this, in our opinion, was what was done. The proper probation of the claims and their justness is not denied, and they should have been allowed. Appellants also appealed from the order allowing the claim of the Bank of Commerce. This claim was in the form of a nóte signed by Holloman & Co., and indorsed by deceased, by simply writing his name on the back. Appellants contend that the note was not properly probated. The affidavit attached to the note, when offered for probate, is as follows: “State of Mississippi, Adams County. “Personally .appeared before me, John F. Jenkins, clerk of the chancery court of said county, L. R. Martin, cashier Bank of Commerce, who made oath that the annexed note for balance three thousand, three hundred and ninety-two dollars and sixty-six cents and interest, two hundred and fifty-one dollars and seventy-seven cents, to Dec. 13/11 made against Est. C. Holloman is just and correct and owing from the deceased, that it is not usurious, and that neither the affiant nor any other person has received payment in whole or in part thereof, except such as is credited thereof, if any, and indorsed by Ed Guess; that security has not been received therefor except as stated. Lewis B. Martin, Cashier Bank of Commerce. “Sworn and subscribed before me this 13th day of December, 1911. “ Johft F. JeNkiNS, Clerk. [Seal.] ” The point made' in support of the exceptions to the probate of this note is that the indorsement is an irregu [675] lar indorsement, and does not show on its face the character of the indorsement, and for this reason the affidavit should, by proper averment, show what relation C. Holloman sustained to the instrument offered for probate. It is to be presumed that the chancellor ascertained the relation of the decedent to the note probated. The affidavit clearly states that the note was due and owing from the deceased; and this, we think, entitled the payer to probate the note against the estate, although the affidavit does not declare whether he was maker or indorser. The affidavit follows the statute, and this is sufficient. The decree disallowing the claims of' appellants is reversed, and is affirmed as to the claim of appellee, the Bank of Commerce. The cost of this appeal is taxed, one-half to appellants and one-half to the Bank of Commerce. Reversed and remanded„